chke_Ex10_5


			
					
						 

					
					
						 

				
	
					
						 

					
					
						Term Note B-2

				
	
					
						 

					
					
						$ 6,000,000.00

				
	
					
						Due: March 1, 2017

					
					
						Date: October 13, 2015

				



		
			 
		

		
			Promise to Pay. On or before March 1, 2017, for value received, CHEROKEE INC. (the "Borrower") promises to pay to JPMorgan Chase Bank, N.A., whose address is 300 S. Grand Ave., Los Angeles, CA 90071-3109 (the "Bank") or order, in lawful money of the United States of America, the sum of SIX MILLION AND 00/100 Dollars ($6,000,000.00) or so much thereof as may be advanced and outstanding, plus interest on the unpaid principal balance computed on the basis of the actual number of days elapsed in a year of 360 days at the rate(s) provided for below and at the rate of 3.00% per annum above such rate(s), at the Bank's option, upon the occurrence of any default under this Note and continuation thereof beyond any applicable cure period as provided herein or in the Credit Agreement (as hereinafter defined), whether or not the Bank elects to accelerate the maturity of this Note, from the date such increased rate is imposed by the Bank.
		

		
			Definitions. As used in this Note, the following terms have the following respective meanings:
		

		
			"Adjusted LIBOR Rate" means, with respect to the relevant Interest Period, the sum of (i) the Applicable Margin plus (ii) the quotient of (a) the LIBOR Rate applicable to such Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period.
		

		
			"Adjusted One Month LIBOR Rate" means, with respect to a CB Floating Rate Advance for any day, the sum of (i) 2.50% per annum plus (ii) the quotient of (a) the interest rate determined by the Bank by reference to the Screen to be the rate at approximately 11:00 a.m. London time, on such date or, if such date is not a Business Day, on the immediately preceding Business Day for dollar deposits with a maturity equal to one (1) month, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to dollar deposits in the London interbank market with a maturity equal to one (1) month.
		

		
			 
		

		
			"Advance" means a LIBOR Rate Advance or a CB Floating Rate Advance and "Advances" means all LIBOR Rate Advances and all CB Floating Rate Advances under this Note.
		

		
			"Applicable Margin" means, on any day, (i) with respect to any CB Floating Rate Advance, (a) 0.00% per annum if the Senior Funded Debt Ratio is less than or equal to 2.00 to 1.00 or (b) 0.25% per annum if the Senior Funded Debt Ratio is 2.01 to 1.00 or greater; and (ii) with respect to any LIBOR Rate Advance, (a) 2.75% per annum if the Senior Funded Debt Ratio is less than or equal to 2.00 to 1.00 or (b) 3.00% per annum if the Senior Funded Debt Ratio is 2.01 to 1.00 or greater.
		

		
			"Business Day" means a day (other than a Saturday or Sunday) on which banks generally are open in California and/or New York for the conduct of substantially all of their commercial lending activities and on which dealings in United States dollars are carried on in the London interbank market.
		

		
			"CB Floating Rate" means the Prime Rate; provided that the CB Floating Rate shall, on any day, not be less than the Adjusted One Month LIBOR Rate. The CB Floating Rate is a variable rate and any change in the CB Floating Rate due to any change in the Prime Rate or the Adjusted One Month LIBOR Rate is effective from and including the effective date of such change in the Prime Rate or the Adjusted One Month LIBOR Rate, respectively. 
		

		
			"CB Floating Rate Advance" means any borrowing under this Note when and to the extent that its interest rate is determined by reference to the CB Floating Rate.
		

		
			"Interest Period" means, with respect to a LIBOR Rate Advance, a period of one (1), two (2) or three (3) month(s) commencing on a Business Day selected by the Borrower pursuant to this Note. Such Interest Period shall end on the day which corresponds numerically to such date one (1), two (2) or three (3) month(s) thereafter, as applicable, provided, however, that if there is no such numerically corresponding day in such first, second or third succeeding month(s), as applicable, such Interest Period shall end on the last Business Day of such first, second or third succeeding month(s), as applicable. If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, provided, however, that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day.
		

		
			
		

		
			


		 


		

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"LIBOR Rate" means with respect to any LIBOR advance for any Interest Period, the interest rate determined by the Bank by reference to Reuters Screen LIBOR01, formerly known as Page 3750 of the Moneyline Telerate Service (together with any successor or substitute, the "Service") or any successor or substitute page of the Service providing rate quotations comparable to those currently provided on such page of the Service, as determined by the Bank from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market, to be the rate at approximately 11:00 a.m. London time, two Business Days prior to the commencement of the Interest Period for dollar deposits with a maturity equal to such Interest Period. If no LIBOR Rate is available to the Bank, the applicable LIBOR Rate for the relevant Interest Period shall instead be the rate determined by the Bank to be the rate at which the Bank offers to place U.S. dollar deposits having a maturity equal to such Interest Period with first-class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period.
		

		
			"LIBOR Rate Advance" means any borrowing under this Note when and to the extent that its interest rate is determined by reference to the Adjusted LIBOR Rate.
		

		
			"Prime Rate" means the rate of interest per annum announced from time to time by the Bank as its prime rate. The Prime Rate is a variable rate and each change in the Prime Rate is effective from and including the date the change is announced as being effective. THE PRIME RATE IS A REFERENCE RATE AND MAY NOT BE THE BANK'S LOWEST RATE.
		

		
			"Reserve Requirement" means, with respect to an Interest Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D.
		

		
			"Regulation D" means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.
		

		
			"Senior Funded Debt Ratio" has the meaning provided in the Credit Agreement.
		

		
			Illegality.  If any applicable domestic or foreign law, treaty, rule or regulation now or later in effect (whether or not it now applies to the Bank) or the interpretation or administration thereof by a governmental authority charged with such interpretation or administration, or compliance by the Bank with any guideline, request or directive of such an authority (whether or not having the force of law), shall make it unlawful or impossible for the Bank to maintain or fund the advances evidenced by this Note, then, upon notice to the Borrower by the Bank, the outstanding principal amount, together with accrued interest and any other amounts payable to the Bank under this Note or the Related Documents shall be repaid (a) immediately upon the Bank's demand if such change or compliance with such requests, in the Bank's judgment, requires immediate repayment, or (b) at the expiration of the last Interest Period to expire before the effective date of any such change or request.
		

		
			Inability to Determine Interest Rates.  If the Bank determines that quotations of interest rates for the relevant deposits  for purposes of the definition of Adjusted LIBOR Rate are not being provided for purposes of determining the interest rate as provided in this Note, then the Bank shall, at the Bank's option, give notice of such circumstances to the Borrower, whereupon (i) the obligation of the Bank to make advances evidenced by this Note shall be suspended until the Bank notifies the Borrower that the circumstances giving rise to the suspension no longer exists, and (ii) the Borrower shall repay in full the then outstanding principal amount of each advance evidenced by this Note, together with accrued interest, on the last day of the then current Interest Period. 
		

		
			Interest Rates. The Advance(s) evidenced by this Note may be drawn down and remain outstanding as up to three (3) LIBOR Rate Advances and/or a CB Floating Rate Advance. The Borrower shall pay interest to the Bank on the outstanding and unpaid principal amount of each CB Floating Rate Advance at the CB Floating Rate plus the Applicable Margin and each LIBOR Rate Advance at the Adjusted LIBOR Rate. In no event shall the interest rate exceed the maximum rate allowed by law. Any interest payment that would for any reason be unlawful under applicable law shall be applied to principal.
		

		
			Interest Payments. Interest on the Advances shall be paid as follows: 
		

		
			A. For each CB Floating Rate Advance, on the last day of each month beginning with the first month following disbursement of the Advance; and
		

		
			
		

		
			


		 


		

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B. For each LIBOR Rate Advance, on the last day of the Interest Period for the Advance and, if the Interest Period is longer than three months, at three-month intervals beginning with the day three months from the date the Advance is disbursed. 
		

		
			Principal payments.  The Borrower shall repay the principal amounts of this Note on a quarterly basis, commencing on November 30, 2015 and continuing on the last day of each February, May, August and November, thereafter through February 28, 2017, in equal principal installments of $300,000.00, and the remaining outstanding principal amount shall be repaid on March 1, 2017.
		

		
			The Borrower shall pay the Bank amounts sufficient (in the Bank's reasonable opinion) to compensate the Bank for any loss, cost, or expense incurred as a result of any payment of a LIBOR Rate Advance on a date other than the last day of the Interest Period for the Advance, including, without limitation, acceleration of the Advances by the Bank pursuant to this Note or the other Related Documents; or 
		

		
			The Borrower shall make all payments on this Note and the other Related Documents, without setoff, deduction, or counterclaim, to the Bank at the Bank's address above or at such other place as the Bank may designate in writing. If any payment of principal or interest on this Note shall become due on a day that is not a Business Day, the payment will be made on the next succeeding Business Day. In addition, the Borrower will make those additional payments required by the Credit Agreement. Payments shall be allocated among principal, interest and fees at the discretion of the Bank unless otherwise agreed or required by applicable law. Acceptance by the Bank of any payment that is less than the payment due at that time shall not constitute a waiver of the Bank's right to receive payment in full at that time or any other time.
		

		
			Notice and Manner of Electing Interest Rates on Advances. The Borrower shall give the Bank written notice (effective upon receipt) of the Borrower's intent to draw down an Advance under this Note no later than 2:00 p.m. Pacific time, on the date of disbursement, if the full amount of the drawn Advance is to be disbursed as a CB Floating Rate Advance and no later than 11:00 a.m. Pacific time three (3) Business Days before disbursement, if any part of such Advance is to be disbursed as a LIBOR Rate Advance. The Borrower's notice must specify: (a) the disbursement date, (b) the amount of each Advance, (c) the type of each Advance (CB Floating Rate Advance or LIBOR Rate Advance), and (d) for each LIBOR Rate Advance, the duration of the applicable Interest Period; provided,  however, that the Borrower may not elect an Interest Period ending after the maturity date of this Note. Each LIBOR Rate Advance shall be in a minimum amount of Five Hundred Thousand US Dollars ($500,000). All notices under this paragraph are irrevocable. By the Bank's close of business on the disbursement date and upon fulfillment of the conditions set forth herein and in any other of the Related Documents, the Bank shall disburse the requested Advances in immediately available funds by crediting the amount of such Advances to the Borrower's account with the Bank. 
		

		
			Authorization for Direct Payments (ACH Debits). To effectuate any payment due under this Note or under any other Related Documents, the Borrower hereby authorizes the Bank to initiate debit entries to Account Number 475392689 at the Bank and to debit the same to such account. This authorization to initiate debit entries shall remain in full force and effect until the Bank has received written notification of its termination in such time and in such manner as to afford the Bank a reasonable opportunity to act on it. The Borrower represents that the Borrower is and will be the owner of all funds in such account. The Borrower acknowledges: (1) that such debit entries may cause an overdraft of such account which may result in the Bank's refusal to honor items drawn on such account until adequate deposits are made to such account; (2) that the Bank is under no duty or obligation to initiate any debit entry for any purpose; and (3) that if a debit is not made because the above-referenced account does not have a sufficient available balance, or otherwise, the payment may be late or past due.
		

		
			Late Fee.  Any principal or interest which is not paid within 10 days after its due date (whether as stated, by acceleration or otherwise) shall be subject to a late payment charge of five percent (5.00%) of the total payment due, in addition to the payment of interest, up to the maximum amount of One Thousand Five Hundred and 00/100 Dollars ($1,500.00) per late charge. The Borrower agrees to pay and stipulates that five percent (5.00%) of the total payment due is a reasonable amount for a late payment charge. The Borrower shall pay the late payment charge upon demand by the Bank or, if billed, within the time specified.
		

		
			Purpose of Loan. The Borrower acknowledges and agrees that this Note evidences a loan for a business, commercial, agricultural or similar commercial enterprise purpose, and that no advance shall be used for any personal, family or household purpose. The proceeds of the loan shall be used only to finance the acquisition by merger of FFS Merger Sub LLC, a Delaware limited liability company and wholly owned subsidiary of Borrower with and into FFS Holdings, LLC, a Delaware limited liability company ("FFS Holdings") and sole member of Flip Flop Shops Franchise Company, LLC, and the acquisition by Borrower of the equity interests of FFS Holdings.
		

		
			Miscellaneous. This Note binds the Borrower and its successors, and benefits the Bank, its successors and assigns. Any reference to the Bank includes any holder of this Note. This Note is subject to that certain Credit Agreement by and between the Borrower and the 
		

		
			
		

		
			


		 


		

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Bank, dated as of September 4, 2012, and all amendments, restatements and replacements thereof (the "Credit Agreement") to which reference is hereby made for a more complete statement of the terms and conditions under which the loan evidenced hereby is made and is to be repaid. The terms and provisions of the Credit Agreement are hereby incorporated and made a part hereof by this reference thereto with the same force and effect as if set forth at length herein. No reference to the Credit Agreement and no provisions of this Note or the Credit Agreement shall alter or impair the absolute and unconditional obligation of the Borrower to pay the principal and interest on this Note as herein prescribed. Capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.  Time is of the essence under this Note and in the performance of every term, covenant and obligation contained herein.
		

		
			Funding Loss Indemnification. If the Borrower pays all or any portion of the principal balance of this Note on a date other than the last day of the Interest Period or the maturity date of this Note (whether by acceleration, prepayment or otherwise) the Borrower shall pay the Bank amounts sufficient (in the Bank's reasonable opinion) to compensate the Bank for any loss, cost, or expense incurred as a result thereof.
		

		
			 
		

		
			 
		

		
			


		 


		

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						Borrower:

				
	
					
						Address:

					
					
						5990 Sepulveda Blvd.

					
					
						 

					
					
						CHEROKEE INC.

				
	
					
						 

					
					
						Suite 600

					
					
						 

					
					
						 

				
	
					
						 

					
					
						Sherman Oaks, CA 91411

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						 

					
					
						By:

					
					
						/s/ Howard Siegel

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						Howard Siegel

					
					
						COO

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						Printed Name

					
					
						Title

				
	
					
						 

					
					
						 

					
						Date Signed:

					
					
						 October 13, 2015

					
					
						 

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

					
						By:

					
					
						/s/ Jason Boling

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						Jason Boling

					
					
						CFO

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						Printed Name

					
					
						Title

				
	
					
						 

					
					
						 

					
						Date Signed:

					
					
						 October 13, 2015

					
					
						 

				



		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		


		 


		

			Signature page to Term Note B-2